Stéphane Bourgon is the lead lawyer for Bosco Ntaganda, a former rebel leader in the Democratic Republic of Congo (DRC) who is facing 13 counts of war crimes and five counts of crimes against humanity at the International Criminal Court (ICC). For the first part of this interview, he spoke to International Justice Monitor about the challenges the defense faced in preparing for the trial and recruiting investigators in DRC and contentious issues in the prosecution case so far.

Wairagala Wakabi (WW): At the start of the trial last September, you had a lot of challenges. You had a small team that was new to the case and you had a lot of evidence to study. Have you caught up now, and how has that affected your case?

Stéphane Bourgon (SB) We have almost caught up by now, although we still feel the after-effects of the fact that we did not have sufficient time to prepare for trial before the beginning of the prosecution’s case-in-chief.

However, let me explain why we needed more time to prepare for trial. First, I was assigned to represent Mr. Ntaganda in mid-August 2014, following the withdrawal of the previous counsel, only nine months before the date initially set for the beginning of trial. It is also noteworthy that only one permanent member of the previous team remained with the new team and more than two months were required to hire new team members. Although the previous team provided us with a lot of information on what they had been working on, our own preparations for trial began in November 2014.

Notwithstanding this late start, it was my intention based on Mr. Ntaganda’s instructions to begin the trial as quickly as possible. Accordingly, in September 2014, I informed the Presiding Judge that I could be ready to begin the trial in June 2015, if certain conditions were met. Firstly, I asked to receive the Prosecution’s Pre-Trial Brief three months before the beginning of trial, i.e. no later than March 2015. Secondly, I insisted on the prosecution’s disclosure of material pursuant to the rules also being complete three months before the beginning of trial. Lastly, I made it clear to the trial chamber that I needed at least one additional legal assistant on my team without delay.

Two things happened in January 2015, which significantly altered the situation and my ability to be ready for trial on June 2, 2015, the date set earlier by the trial chamber. First, the prosecution added to its case more than 15 new witnesses on whom it intended to rely heavily. Second, the size of the prosecution’s case in terms of disclosure tripled.

As a result, it soon became clear to me that our team could no longer be ready for trial on June 2, 2015. Accordingly, in early April, two months before the scheduled beginning of the trial, I informed the judges that due to the new situation, we would no longer be able to be ready to begin the trial at that time. An additional problem further impeded our ability to be ready by June 2, namely the difficulties encountered in conducting the necessary investigations in DRC.

WW: Given that the trial started when you had not been able to sufficiently study and interrogate the prosecution’s material, how has that affected the case so far?

SB: As you know, in the end opening statements took place in early September and the prosecution called its first witness on September 15, more than three months later than the date initially set for trial. Nonetheless, the additional time made available was of very limited assistance for at least three reasons. First, during this period we were not able to conduct any investigations in DRC. Second, during this period we were also engaged in time consuming litigation with a view to challenging the judges’ assessment of the time we needed to be ready for trial. Third, we were also involved in ongoing complex and time consuming litigation on two fronts, namely the situation of our investigators in DRC and allegations raised by the prosecution many months earlier that Mr. Ntaganda somehow attempted to interfere with witnesses.

As a result, our team was not able to review all of the material disclosed by the prosecution thoroughly for the purpose of effectively cross-examining prosecution witnesses. Although with hindsight we are satisfied with the result of the cross-examinations we conducted of the first few prosecution witnesses, the fact remains that this situation seriously impacted our ability to represent Mr. Ntaganda. We constantly had to play catch up with the prosecution while striving to gain the capability to conduct investigations in DRC. As mentioned earlier, we have now almost caught up with the prosecution. The turning point in this regard happened in January 2016. By then we were able to review most of the material disclosed by the prosecution and to conduct meaningful investigations on the ground.

WW: That brings us to the problems you had with investigations in the field. What made it difficult for you to recruit investigators and to conduct investigations?

SB: Finding a good investigator is difficult. The aim is to find an investigator who possesses sound technical skills as well as sufficient knowledge of the situation and good contacts on the ground. In contrast with prior cases I was involved in before other international courts and tribunals, finding a good investigator in Bunia, DRC, proved to be more difficult than expected.

By the time I was assigned to represent Mr. Ntaganda, almost no investigation had been conducted since March 2014, which coincided with the end of the confirmation of charges hearings. A first investigation mission was conducted in December 2014, with the assistance of the investigator initially employed by the previous defense team but it was not possible to continue working with him due to his lack of availability.

Even though I was able to retain the services of two new investigators, we actually call them “personnes ressources,” by February 2015, few investigation missions were conducted with their assistance due to logistical constraints. More importantly, in June 2015, I had to stop working with these investigators as a result of a decision rendered by the trial chamber, which to this day remains confidential. If and when a public redacted version of the trial chamber’s decision is issued, I will then be in a position to tell you more.

By September 2015, as the trial got underway, I managed to secure the services of a professional investigator and a local resource person for the purpose of resuming our investigations on the ground. Unfortunately, as a result of inadvertent contacts between our investigator and prosecution witnesses and allegations of wrongdoings raised by the prosecution, our defense investigations on the ground stopped yet again. This explains why we were not able to conduct meaningful investigations until January 2016.

WW: How did you lose these investigators?

SB: As mentioned earlier, the decision rendered by the trial chamber regarding the investigators we were working with between February and May 2015 is confidential. Accordingly, at this time I am not able to provide you with any more information in this regard. Suffice it to say that today we have one investigator and two resource persons conducting investigations on the ground, which makes it possible to investigate the prosecution’s case as we should have had the ability to do before the beginning of the trial.

WW: Are you able to say some general things about what the problem was?

SB: I am unfortunately not able to do so until a public redacted version of the trial chamber’s decision regarding the investigators we were working with during the period from February to May 2015 is issued. As for the professional investigator who worked with us from September 2015, her resignation is also related to a confidential decision rendered by the trial chamber, which I am not in a position to tell you more about.

WW: The trial is being heard in blocks, which is not the case with most other cases at the court. How has this worked out?

SB: In past cases I have been involved in before other international courts and tribunals, trial proceedings were not conducted in fixed evidentiary blocks as in this case. Nonetheless, the practice of adjournments at regular intervals is common in most international cases. For the defense of Mr. Ntaganda, the evidentiary blocks used in this case proved to be very helpful. Honestly, without the evidentiary block system, we would not have been able to catch up with the prosecution.

The short breaks in between evidentiary blocks have also made it possible for us to challenge the prosecution’s fulfilment of its disclosure obligations and lifting of standard redactions at least a few days before the testimony of witnesses.

As long as the evidentiary blocks are not too long and the breaks not too short, we believe this system will, in the long run, lead to a shorter trial. There are, however, a few drawbacks such as the pressure imposed on the parties to complete the testimony of all witnesses scheduled to testify during any particular evidentiary block.

To be sure, this system can only work and produce results if the cross-examining party is informed well in advance of the witnesses who will be called to testify. While the trial chamber has been very good at setting the dates of each block well in advance, the prosecution has not been able to provide its lists of witnesses more than 30 days in advance, which has made it very difficult for the defense to be ready in time.

WW: The prosecution has called around 30 witnesses and you say you have conducted your investigations for some time now. What is the reaction of the defense to some of the evidence that has been heard so far from prosecution witnesses?

SB: There’s been no major surprise thus far. The evidence the prosecution has attempted to adduce through the testimony of its witnesses who have testified matches what was expected of them. In many instances, we are confident that we succeeded in demonstrating through our cross-examinations that the evidence provided by these witnesses is not reliable.

Nonetheless, important issues arose, which proved to be problematic. First, on a number of occasions, the prosecution has attempted to elicit evidence from witnesses regarding allegations of crimes committed personally by Mr. Ntaganda, which are neither found in the Updated Document Containing the Charges (UDCC) nor, in certain cases, in the prosecution’s pre-trial brief. What is more, the prosecution has also been attempting to elicit evidence from witnesses in respect of alleged crimes, which would have been committed outside, in fact after, the temporal scope of its case against Mr. Ntaganda.

We take issue with this practice, the impact of which is twofold: first it is unfair as we are called to cross-examine witnesses, often at the last minute, on alleged crimes Mr. Ntaganda is not accused of, without having had the opportunity to investigate and prepare to challenge this evidence. Second, regardless of the probative value which will be attributed to this evidence by the trial chamber at the end of the case, it is now part of the record and we have no choice but to counter these allegations and if necessary to prepare and present a defense to the same. Inevitably, this will make the trial longer whereas the aim should be to shorten the trial if possible, without infringing on the rights of Mr. Ntaganda.

Another important issue that arose is the nature of the evidence adduced by the prosecution through its witnesses. In most cases it indirect as well as second-hand. Hearsay is insufficient to describe the type of evidence we hear from [some] witnesses. Unfortunately, the trial chamber, despite instructing each witness at the beginning of their testimony that they should focus on what they did, saw, or heard themselves, is taking a very liberal approach and allowing the witnesses to provide evidence on issues they for some reason know about, without making clear how they would have become aware of such events.

We understand that the trial chamber is composed of professional judges who are able to attach the proper weight to evidence of this nature at the end of the case. The fact remains, however, that once heard in the courtroom, this evidence is part of the record. Consequently, we have no choice but to challenge this evidence and where necessary to prepare a defense to the same. The direct result so far is the length of our cross-examinations, which are much longer than we would like them to be. This will inevitably make the trial longer.

WW: On the issue of bringing evidence not in UDCC or Prosecution Pre-Trial Brief, have you objected to this and asked judges not to let this evidence be presented?

SB: Of course we have objected to this practice on many occasions. Unfortunately, in most cases the trial chamber did not accept our arguments and has allowed the prosecution to lead evidence in relation to alleged crime not found in the UDCC. The trial chamber rather accepted the prosecution view that such evidence has some relevance to which probative value might be attached.

We accept the trial chamber decisions in this regard although we will continue to raise objections to this procedure. Nevertheless, the real difficulty for us is that the Trial Chamber has denied our requests to raise this issue before the Appeals Chamber by way of an interlocutory appeal.

WW: I remember one instance where there was evidence alleging that Mr. Ntaganda directly took part in rape. The defense objected to it and the judges made a ruling.

SB: Indeed, we were surprised by this decision. I believe this was a public decision, but I am not sure, so I will limit myself to general observations. This issue dealt with an allegation of rape which would have been committed personally by Mr. Ntaganda against a victim who according to the prosecution was neither a civilian nor a child soldier. Since the UDCC contains no charges against Mr. Ntaganda for the rape of members of his own armed group, we argued that the witness should not testify about this event as it is not relevant to a specific charge and thus has little, if any, probative value.

The trial chamber decided to hear the evidence, which in our view is unfair as the potential prejudice of such evidence far outweighs the probative value which can be attached to the same. It goes without saying that we had to thoroughly cross-examine this witness and that we might have to call one or more witnesses during the presentation of the case for the defense, which will again make the trial longer.

WW: But the charges against Mr. Ntaganda are also very many so I imagine there is a lot of evidence and a lot of witnesses to hear.

SB: Indeed there are many charges and many more witnesses to be heard, so the trial will inevitably be long. However, our position is that the evidence adduced by the prosecution through its witnesses should focus on charges which are in the UDCC and the evidence provided by witnesses should be limited to what they did, saw, or heard personally.